The Supreme Court collegium on Monday (March 24, 2025) recommended the transfer of Delhi High Court judge Justice Yashwant Varma to the Allahabad High Court. Justice Varma has been embroiled in controversy following allegations that wads of burnt currency were discovered at his residence during a fire.
His transfer was proposed after Delhi High Court Chief Justice D.K. Upadhyaya recommended an in-house inquiry against him. Meanwhile, Justice Varma has dismissed the allegations as a “conspiracy to malign” him.
How are High Court judges transfered?
Article 222 of the Constitution empowers the President, in consultation with the Chief Justice of India (CJI), to transfer a judge from one High Court to another. This provision has been the subject of extensive judicial interpretation, particularly through three landmark rulings colloquially known as the First, Second, and Third Judges Cases.
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In S.P. Gupta v. President of India (1981), commonly referred to as the First Judges Case, the Supreme Court held that consultation with the CJI did not necessitate concurrence, thereby affirming the executive’s primacy in judicial appointments and transfers. However, this position was overturned in Supreme Court Advocates-on-Record Association v. Union of India (1993), or the Second Judges Case, where the Court institutionalised the collegium system. The ruling established that in the event of a disagreement between the President and the CJI, the latter’s opinion would prevail.
More importantly, the court underscored that judicial transfers must serve the public interest and improve the administration of justice. Justice J.S. Verma, who authored the judgment, further clarified that the CJI must consult the Chief Justice of the concerned High Court, relevant Supreme Court judges, and at least one senior High Court judge or any other individual whose views are deemed significant, including senior members of the Bar, where appropriate.
The court further reasoned that involving multiple judges in the decision-making process serves as an inherent safeguard against arbitrariness. Consequently, it limited judicial review of transfer decisions, asserting that such matters should remain insulated from “legislative debates” and unwarranted interference by “strangers and busybodies” in judicial affairs.
Notably, the court clarified that a judge’s consent is not a prerequisite for either an initial or subsequent transfer. In the Third Judges Case (1998), it further refined the collegium system, mandating that transfer recommendations be made by the CJI in consultation with the four seniormost judges. Additionally, it required inputs from Supreme Court judges who had previously served in the High Court from which the judge was being transferred.
Following the collegium’s recommendation, the Law Minister reviews it and advises the Prime Minister, who then forwards the recommendation to the President. Once approved, the transfer is formalised through a gazette notification, and the judge assumes office in the new High Court.
What are the criticisms?
A recent report by the Geneva-based International Commission of Jurists (ICJ) raises serious concerns about judicial independence in India, citing growing executive interference, opacity in appointments, and weak accountability mechanisms. It highlighted that judicial transfers, carried out without the affected judge’s consent, are often justified on ambiguous grounds such as “public interest” and the “better administration of justice.” This, the report noted, makes it difficult to distinguish legitimate transfers from punitive or retaliatory actions.
To mitigate these concerns, the ICJ recommended that Parliament establish a “Judicial Council” to oversee appointments and transfers based on transparent, objective, and predetermined criteria. It further stressed that the council should comprise a majority of judges in accordance with international standards of judicial independence.
Why was the NJAC struck down?
To address concerns over the collegium system’s opacity, the Modi government in 2014 proposed sweeping reforms to judicial appointments. In August, Parliament enacted the Constitution (99th Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, establishing an independent body to replace the collegium system for appointing judges to the Supreme Court and High Courts.
The NJAC was to be chaired by the Chief Justice of India and include the two senior-most Supreme Court judges, the Union Law Minister, and two eminent civil society members. One would be nominated by a panel comprising the CJI, Prime Minister, and Leader of the Opposition in the Lok Sabha, while the other had to belong to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, or be a woman.
The amendment witnessed rare political unanimity, passing in Parliament with near-complete consensus—543 members voted in favor, with the sole dissent from veteran jurist Ram Jethmalani—and was subsequently ratified by 16 State legislatures.
However, within days of its enactment, the law was challenged before the Supreme Court. The primary contention was the veto power granted to any two dissenting NJAC members, which could potentially allow the Law Minister and the two eminent members to override the judiciary’s majority within the commission.
On October 16, 2015, a five-judge Bench ruled with a 4:1 majority that the NJAC was unconstitutional and violated the “basic structure of the Constitution”. The Bench underscored that “the veto power with the Law Minister or with non-judge members, as against a Supreme Court Judge who is a member of the collegium, may involve interference with the independence of the judiciary”.
However, the lone dissenter, Justice Jasti Chelameswar, was unsparing in his criticism of the collegium’s lack of transparency. He observed that, aside from occasional leaks, its records remained “absolutely beyond the reach of any person, including judges of this court who are not lucky enough to become the Chief Justice of India.” He further argued that the inclusion of two civil society representatives in the NJAC could have acted as a safeguard against “unwholesome trade-offs within the collegium and incestuous accommodations between the Judicial and Executive branches.”
What lies ahead?
In a press release, the Supreme Court clarified that Justice Varma’s transfer to the Allahabad High Court, where he will rank ninth in seniority, was “independent and separate from the in-house inquiry procedure.” However, the Union government is yet to approve the recommendation.
Justice Varma’s transfer appears intended to avert an administrative impasse in Delhi. As the third senior-most judge, he was a member of both the High Court Collegium and several key administrative committees. With his judicial work suspended due to the ongoing inquiry, his continued presence in Delhi would have effectively paralysed crucial decision-making processes.
The development has also been leveraged to revive the political argument for the NJAC. Speaking in the Rajya Sabha, Vice President Jagdeep Dhankhar remarked that “things would have been different” had the top court not struck down the “historic legislation.” Meanwhile, the CJI has assured the listing of a petition seeking the registration of an FIR and a thorough investigation into the incident.
Published – March 27, 2025 04:50 pm IST